ALTERNATE DISPUTE RESOLUTION (ADR)
Alternative Dispute Resolution (ADR) provides a confidential and alternative method of tackling legal disputes which avoids going to court. The most common types of ADR are conciliation and mediation, adjudication and arbitration.
Conciliation and mediation involve an independent trained mediator to facilitate communication with the aim of achieving a settlement or resolution between the two parties having the dispute. In general, mediation refers to the facilitation of communication whereas conciliation refers to any evaluative methods such as the making of recommendations as to an outcome. Conciliation is generally used for employment situations rather than commercial disputes. Conciliation is a compulsory process before an individual wish to bring a claim to the Employment Tribunal.
Adjudication is generally reserved for disputes which arise out of contracts. It is a relatively formal process which involves: providing a written Notice of Adjudication which sets out the brief details of the dispute; appointment of an agreed adjudicator; serving a referral notice which sets out the dispute in detail by the aggrieved party; a response to this referral notice (essentially the defence); and finally a decision being reached by the adjudicator within 28 days of the referral notice. This decision is final and binding.
Arbitration is more formal and gentler than ad junction and mediation that involves a process in which the dispute is resolved by the decision of an arbitrator (a nominated third party who is qualified to handle arbitration). The arbitration process can be particularly useful in disputes which require an understanding of technical knowledge and where privacy is important (eg to avoid disclosure of commercially sensitive information) or if there is an international element (ie to avoid multiple legal jurisdictions). It runs as a tribunal process and decisions are binding. Many contracts will contain an arbitration clause, which requires arbitration to be used in the case of a dispute.
Why you should use ADR and Not Court?
If you take your case through Court Proceedings, you must comply with the “Pre-action Protocol for the matter” (PAP). The PAP prepares your case and ensures that you make a serious attempt to resolve the dispute before entering the courtroom including pushing you into ADR.
After some time engaging in the court process and much expense later, whether or not you have used the PAP you will be “encouraged” to consider ADR normally Mediation or Adjudication. The taxpayer and modern court system do not want you there, so commercially it is best option that you should consider ADR before you venture down the Court route and you should always ensure you have an effective ADR clause in the contract to allow this.
As stated above the ADR is any dispute resolution process that does not require the Court. This process can be as simple as negotiation or can involve an Expert Report or Expert Determination where opinion settles the matter.
Mamoon Solicitors can provide the full spectrum of ADR services which can be explored further by making an appointment with our experts.